FEDERAL COURT OF AUSTRALIA

Applicant VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1331

MIGRATION – claim for protection visa refused by Refugee Review Tribunal – application for constitutional writs of mandamus, prohibition and certiorari under s 75(v) of the Constitution – remittal from High Court – application for writs of certiorari and mandamus brought out of time – reasons for delay – applicant awaiting outcome of request to Minister for exercise of his discretion under s 417 of the Migration Act 1958 (Cth) – whether compliance with s 430(1) - whether jurisdictional error in failure to consider applicant’s claims – relocation – whether possibility of a different result

Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth) s 44(2A)

High Court Rules O 55 rr 17 and 30, O 60 r 6

Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054 discussed

Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 applied

Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 referred to

Opanayaka Mudiyanselage v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 823 referred to

Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 cited

Re Batuwantudawa [2003] FCA 684 referred to

Re Ruddock; ex parte LX [2003] FCA 561 cited

Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266 referred to

Re Ruddock; ex parte Reyes (2000) 75 ALJR 465 discussed

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 referred to

NANI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1082 referred to

APPLICANT VUAD OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

V167 OF 2003

WEINBERG J

20 NOVEMBER 2003

MELBOURNE

THE COURT ORDERS THAT:

1.             The application be dismissed.

2.             The applicant pay the first respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

FACTUAL BACKGROUND

1                     The applicant is an Indian citizen, aged 40, who arrived in this country on 11 December 1999, on a visa (Visitor) (Class TR) sub class 676, valid for one month.  He was born in Kanpur, in the province of Uttar Pradesh. 

2                     On 21 December 1999, the applicant applied for a protection visa (Class XA).  In his application, he stated that the reason that he left India was a “family quarrel” in which his “cousins” had forcibly attempted to take from him certain property that he had received from his grandparents.  He claimed that his cousins had attempted to poison him, had assaulted him, and had threatened to kill him if he complained to the police.  He stated that his cousins would harm him if he went back to India because they wanted to hold on to the property. 

3                     On 14 March 2000, a delegate of the first respondent (hereafter referred to, for convenience, as “the respondent”) refused to grant a protection visa.  The delegate found that the mistreatment directed at the applicant by his relatives was not for a Convention reason.

4                     The applicant then filed an application for review of the decision of the delegate.  He attended a hearing, accompanied by a registered migration agent who acted as his adviser, and an interpreter, convened before the Refugee Review Tribunal (“the RRT”), on 13 December 2000.  At the hearing, he gave evidence in support of his claims, as set out in his initial application.   

5                     On 19 December 2000, the RRT affirmed the decision of the delegate.  It published its reasons for decision on 12 January 2001. 

6                     The applicant took no steps to challenge the RRT’s decision until some seven months later.  On 6 August 2001, he commenced proceedings in the High Court seeking what are generally described as constitutional writs.  His application for an order nisi was remitted, by consent, to this Court on 26 November 2002 pursuant to s 44(2A) of the Judiciary Act 1903 (Cth). 

7                     The question has arisen as to whether there are any time limits in relation to relief by way of prohibition, which is one of the constitutional writs sought, or whether delay in seeking that relief is simply a matter to be taken into account in exercising the Court’s discretion.  See generally Thayananthan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1054. 

8                     Putting that issue to one side for the moment, the application for an order nisi was filed in the High Court well outside the time limits applicable to such proceedings.  An order nisi for a writ of certiorari must be sought within six months of the date of the judgment or order challenged (O 55 r 17 of the High Court Rules).  An application for a writ of mandamus, or an order in the nature of mandamus, must be made within two months of the date of the refusal to hear (O 55 r 30).  There is a general power in the High Court to enlarge time (O 60 r 6).  However, as no such order was made at the time this matter was remitted, the application remains subject to these time limits.

9                     The proposed order nisi calls upon the Minister to show cause why writs of mandamus and prohibition should not issue, and upon the Minister and the RRT to show cause why a writ of certiorari should not issue, in relation to the RRT’s decision to affirm the refusal of a protection visa.

10                  It should be noted that the RRT filed a submitting appearance.  It did not wish to be heard, save as to costs. 

THE PRINCIPLES GOVERNING APPLICATIONS TO EXTEND TIME

11                  The order of remitter directed that the application for an order nisi proceed as if steps already taken in the matter in the High Court had been taken in this Court.  It was also directed that further proceedings on the remitter should be governed by O 55 rr 17 and 30, and O 60 r 6 of the High Court Rules.

12                  As indicated earlier, the High Court Rules make no provision for time limits in relation to prohibition.  Nonetheless, the ordinary principles that govern delay in seeking prerogative relief are applicable to that remedy.

13                  The principles that govern enlargement of time under the High Court Rules were explained by Mc Hugh J in Re Commonwealth of Australia; ex parte Marks (2000) 177 ALR 491 at 495.  Relevantly, his Honour observed that, “the grant of an extension of time under O 60 r 6 is not automatic”.  A “case would need to be exceptional” if time were to be enlarged for a period exceeding “many months”.  In deciding whether to enlarge time, a court would have regard to both any explanation for the delay, and the applicant’s prospects of success.  Importantly, the constitutional writs were directed at the acts or decisions of public bodies or officials.  There was a strong public interest in achieving finality in relation to the legitimacy of such acts or decisions. 

14                  A fundamental consideration in any application to enlarge time is the length of the delay that has occurred.  In ex parte Marks there was a delay of 17 months between the making of the impugned decision, and the application for the constitutional writs.  McHugh J said that he doubted that an extension of time could ever be granted to quash a decision after such a lengthy delay unless it had been brought about by some conduct on the part of the decision-maker.

15                  In the present case, the period of delay is approximately seven months.  A delay of that length is not insubstantial, although it is only one month beyond the period provided for in the High Court Rules regarding certiorari.  One explanation proffered for the delay was the applicant’s inability, for financial reasons, to seek judicial review of the RRT’s decision in this Court.  There is no elaboration of the applicant’s financial situation, apart from his assertion that he was in difficulty because he was not permitted to undertake employment in this country.

16                  In Applicant M216/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 931 Heerey J said at [27] that it was not in aid of the applicant’s case that his “…vague references to ‘financial difficulties’ are completely unparticularised”.  With respect, the same could be said of this applicant’s submission.  It should be noted that his affidavit was prepared at a time when he was legally represented. 

17                  A further explanation for the delay was that the applicant was awaiting the outcome of a request to the respondent, made on 12 February 2001, to exercise his discretion pursuant to s 417 of the Migration Act 1958 (Cth) (“the Act”) to make a more favourable decision than did the RRT.  The respondent refused that request, and the applicant was informed of his decision by letter dated 7 May 2001. 

18                  It was submitted on behalf of the respondent that the applicant’s request under s 417 should be viewed as an indication that he was prepared to accept the RRT’s decision as correct, and that rather than challenge that decision by way of judicial review, he had elected to take another course.  In making that submission, counsel relied upon a series of decisions of this Court.  See: Opanayaka Mudiyanselage v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 823 per Goldberg J at [18], [20-23]; Applicant A2 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 576 per von Doussa J at [9]; Re Batuwantudawa [2003] FCA 684 per Gray J at [9]; and Re Ruddock; ex parte LX [2003] FCA 561 per Heerey J at [42].  To these cases may be added my own decision in Applicant M29 of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1266.

19                  In Applicant A2 of 2002, von Doussa J said of the applicant that: 

“…having taken that other course, [to make an application under s 417, and await a decision in respect of that application] in my opinion he must live with the consequence of the delay that occurred.”

This statement by von Doussa J crystallised the legal consequences of what Gray J, in Re Batuwantudawa,characterised as “inconsistent courses”.  It seems to me to make no difference that the comments of Gray J in Re Batuwantudawa, and Goldberg J in Opanayaka Mudiyanselage, were made in reference to s 351 rather than s 417.  Section 351 concerns the Migration Review Tribunal and not the RRT, but the two provisions are similar in their scope and operation. 

20                  It is also useful to have regard to what was said on this issue by Heerey J in Re Ruddock; ex parte LX:

“As a matter of law there was no reason why [the making of an application to the Minister to exercise his discretion under s 417 of the Act] … should have held up the filing of an application in the High Court.  The terms of s 417 itself, including the provision that the power may only be exercised personally by the Minister, suggest that it is to be reserved for rare cases and that it would usually be unwise to rely on the success of such application where other avenues of possible relief are available as of right.”

21                  It was submitted on behalf of the respondent that the Court should not grant an enlargement of time in relation to the commencement of this proceeding.  Neither the claim of financial difficulty, nor the request under s 417, adequately explained the delay that had occurred. 

22                  It was further submitted that the fact that the relief sought in the draft order nisi included a writ of prohibition directed to the respondent to prohibit him from “acting upon or giving effect to” the RRT’s decision did not mean that the applicant could avoid the need to explain and justify the delay that had occurred.  In Thayananthan, Merkel J observed that if a decision by the RRT were affected by jurisdictional error, prohibition would be available to prevent the Minister from acting on or giving effect to that decision, in reliance on the RRT’s decision, as having finally determined the visa application.  His Honour concluded that because prohibition was a primary remedy, and not ancillary to certiorari or mandamus, it would be wrong to dismiss a proceeding seeking prohibition on the ground that the application for writs of certiorari or mandamus was out of time. 

23                  Originally the respondent’s position was simply that the grant of prohibition was discretionary, and that the same considerations as would arise on the application for an enlargement of time would be relevant to the exercise of the Court’s discretion to grant or refuse relief.  However, in supplementary submissions, the respondent contended that

Thayananthan was inconsistent withthe observations of McHugh J in Re Ruddock; ex parte Reyes (2000) 75 ALJR 465 at [23]-[24] and [27]:

“In the first place, there is no ground whatever in a case such as the present for the issue of a writ of prohibition against the minister.  As was conceded, as the law stands at the moment and on the facts of the case, the minister was under a duty, in accordance with s 198 of the Migration Act 1958 (Cth), to deport the applicant.  No claim for prohibition could possibly be made on the basis of his personal fault or breach of the law or jurisdictional error.”

24                  McHugh J went on to say that if the decision of the RRT had been quashed, and a further hearing ordered, it would be proper, in an appropriate case, to enjoin the Minister from deporting the applicant while the matter was still before the appropriate tribunal.  The principal relief would be mandamus and certiorari, not prohibition against the Minister, which was not a relevant remedy.

25                  It was submitted on behalf of the respondent that the Court should follow the observations of McHugh J, and not the reasoning of Merkel J.  Prohibition was not an available remedy to restrain the Minister, or any officer within the meaning of the Act, from carrying out the administrative steps that follow automatically under the Act once a visa application is “finally determined”, irrespective of any alleged jurisdictional error affecting the RRT’s decision.

26                  For reasons that will become apparent, it is unnecessary for me to determine the correctness, or otherwise, of this submission.  This case can be decided on a more straightforward basis than whether or not an extension of time is required, or indeed, should be granted. 

THE MERITS OF THE APPLICATION

27                  In substance, the draft order nisi alleges that the RRT:

·                       failed to consider claims made or evidence given by the applicant, namely that he had at various times fled in fear of his life, and had been arrested and beaten by police and members of the ruling Bharatiya Janata Party (“the BJP”) in India, and that he would suffer persecution by reason of his political opinion at the hands of the Indian police and members of the BJP;

·                       misconceived the applicant’s evidence, and wrongly concluded that he was persecuted in order to obtain his property, and not by reason of his political opinion; and

·                       failed to comply with s 430(1) of the Act.

28                  The draft order nisi is supported by two affidavits filed on behalf of the applicant.

29                  In an affidavit sworn on 6 August 2001, the applicant claimed to have a well-founded fear of persecution if forced to return to India.  He claimed that the RRT had failed to consider a number of relevant matters submitted in support of his application, including his arrest and poisoning by members of the BJP.  He also claimed that the RRT had misunderstood his evidence. 

30                  In an affidavit sworn by the applicant’s former solicitor on the same date, it was said, on the basis of instructions and documents shown to him, that he believed that the RRT had failed to consider various claims made by the applicant.  Importantly, these included a claim that he had been “arrested and beaten by the Police at the behest of the members of the ruling BJP party in India”.  The affidavit also claimed that the RRT had misconceived the applicant’s testimony, wrongly concluding that he was saying that he had been persecuted in order to obtain his property, and not by reason of his political opinion. 

31                  As can be seen from both the applicant’s affidavit, and that of his former solicitor, his case was that the RRT had failed to address an important claim that he had made regarding having been “arrested and beaten by the Police”.  It is clear from the RRT’s reasons for decision that it did not address any such claim.  The initial question is whether any such claim was, in fact, made. 

32                  It was in part, at least, because the allegation was supported by an affidavit sworn by the applicant’s former solicitor that I adjourned the hearing on 14 October 2003 in order that a transcript of the proceeding before the RRT could be obtained.  It was only by doing so that I could ascertain whether the applicant’s contention that the RRT had failed to deal with this claim was true.

33                  However, before dealing with that issue, it may be useful to summarise, in some detail, what the RRT actually determined. 

34                  The RRT referred to the information contained in the applicant’s initial application, together with the claims that he made during the hearing.  It noted that the applicant said that after serving seven years as an active member of the governing BJP party, he quit that party in 1997, and joined a rival group, the Samajwadi Party (“the SWP”). 

35                  The RRT noted that the applicant claimed that because of his most recent political affiliations with the SWP, he had been persecuted by his relatives, all of whom were said to be active members of the BJP, and other BJP party workers.  The relatives and other BJP members had seized his property, which comprised a shop with a steel business, a block of land, a residence and a significant fixed bank deposit. 

36                  The RRT further noted that the applicant stated that he still held the original title deeds to the shop and block of land, was the signatory to the bank account, and that his father-in-law owned the residence.  It then referred to his testimony regarding his unsuccessful attempts to seek sanctuary in other parts of India.  The applicant claimed that wherever he had gone, his persecutors had tracked him down.  On one occasion, he had been poisoned, and required hospitalisation.  He claimed that he would continue to support the SWP.  He said that he feared for his own life, and that of his family, if he were required to return to India.

37                  The RRT noted that, in his original application, the applicant had not claimed to fear persecution by reason of his political opinions.  It then set out the reasons that he proffered for having failed to make any such claims.  The RRT said:

“…he told the Tribunal he did not disclose the political aspects of his case before the hearing because he was concerned that the information might be passed on to his country.  He said he was under pressure and mentally disturbed and did not realise he should disclose the political link to the threats he had fielded.”

38                  The RRT next summarised the contents of two letters provided by the applicant.  It said:

“One is signed ‘your enemy’, but otherwise anonymous.  It states that the author will kill him and take his property and, if he wants to save his life he must give all of his properties…It reiterates that the author will kill the Applicant and his family and take his property and adds that the writer will shoot him wherever he lands in India.

The other is signed ‘your friend’ and tells the Applicant that his brother is very angry and looking for him.  It states that people went to find him in Delhi and Chandighar and want him to come back.”

39                  Under the heading “Discussion and Findings” the RRT concluded:

“The Tribunal accepts that the Applicant had been involved in a dispute with some relatives over property that he owns.  It is unclear whether it is his cousins or his brothers, as his story changed. 

The Tribunal does not accept, however, that the people with whom he is in dispute are motivated by the Applicant’s political opinions to harm him.  His claims that there was any political link at all were not made until the hearing, and the Tribunal is satisfied that that aspect of his evidence was a recent invention.

In arriving at that conclusion, it notes that neither of the letters provided by the Applicant suggest any political motivation in the Applicant’s pursuers.  There is lack of genuineness surrounding the letters, signed as they are by ‘your friend’ and ‘your enemy’ and each paraphrasing the Applicant’s claims regarding property and his escape to Delhi and Chandighar.  Even if the letters are genuine, they do not disclose any Convention motivation to harm the Applicant on the part of his alleged persecutors.  Each of those personal pieces of information he provided indicate only that the pursuers are motivated to grab the Applicant’s property.  The absence of referral to any other motivation does not exclude the possibility that such motivation exists, but in this case the Tribunal cannot be satisfied that there is a Convention motivation. 

In considering the Applicant’s evidence in the context of the Refugee’s Convention and Protocol, the Tribunal is satisfied that his fears are not for reason of his race, nationality, religion, membership of a particular social group or political opinion.  The Tribunal has considered whether or not there may be an appropriate particular social group but concludes, ultimately, that the Applicant’s fears arise from a loss of property that is a consequence of a dispute with family members.

…

…[T]he Tribunal does not accept that there is any link between the Applicant’s fears of harm and his political opinions.  His fears arise from a family dispute over property.  In any event, it is apparent that any threats that have been made have been relatively idle, as they [sic] Applicant has not lost any property as yet, his family has not been harmed and, if he is to be believed, he recovered from an attack relatively quickly and was able to leave the country without his influential brothers and/or cousins intercepting him.

At the very worst, it seems that he could avoid all further danger by handing over the property that has been demanded.  Whilst losing some property would be very unpleasant, the Tribunal is satisfied that such a fate does not amount to persecution, particularly in the Applicant’s case where his in-laws have property which the Applicant has previously used, where his wife and children remains and, in the Tribunal’s view, to which the Applicant can return.  …

…

If the Applicant wishes to escape such actions, it would be reasonable that he relocate to another area of India where he is not known.  He speaks English and Hindi, has experience living and working away from home and is well-educated.  He could, for example, relocate to Delhi or another city where he could seek accommodation and employment without being harassed.”

40                  It was submitted on behalf of the respondent that none of the grounds set out in the draft order nisi was even arguable.  The RRT had not misconceived the applicant’s evidence, nor had it failed to consider any of his claims.  It rejected his claim that his mistreatment was related to his political opinion, or to his membership of a particular social group.  That was a finding of fact, based largely upon the RRT’s assessment of the applicant’s credibility.  A finding of that kind was not open to review by this Court.  Once that finding was made, it was unnecessary for the RRT to address independently the matters raised by the applicant in his draft order nisi.

41                  It was further submitted on behalf of the respondent that the RRT had not failed to comply with s 430(1).  That subsection did not impose any obligation upon it to make findings on “material” questions of fact, but merely to set out the findings that it had actually made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.  This the RRT had done.

42                  Finally, it was submitted that the RRT’s decision was independently supported by its finding that the applicant could avoid any real chance of future harm by relocating within India: NANI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1082 per Jacobson J at [54]-[59].  Any error on its part in dealing with other aspects of the applicant’s claims would not have affected its decision, and would not, therefore, amount to “jurisdictional error”.  Alternatively, relief should be refused in the exercise of the Court’s discretion. 

43                  When this matter was first before me, I was entirely satisfied that the submissions on behalf of the respondent regarding these matters were correct, and that the application should be dismissed.  What troubled me was the applicant’s assertion that a significant claim that he had advanced before the RRT had not been addressed by it in its reasons for decision.  My concern was heightened by the support lent to that assertion by the applicant’s former solicitor in his affidavit filed in support of the draft order nisi.  It was for that reason that I adjourned the application so that a copy of the transcript of the RRT hearing could be obtained. 

44                  The transcript reveals that the applicant’s assertion that he claimed before the RRT that he had been “arrested and beaten by the Police” at the behest of the BJP is entirely without foundation.  It is true that he referred to the police as being unwilling or unable to provide him with protection.  However, that was a matter that was considered by the RRT.  He made no claim whatsoever of having been mistreated by the police, in any direct sense, either in his initial application in support of his claim to be a refugee, or during the course of the RRT hearing.

45                  In answer to the question “Why did you leave that country [India]?”, the applicant wrote in his initial application:

“Reason for leaving my country is family quarrel. My cousins have taken over my property which I got from my grand parents.  I am alone and they are four brothers.  They have licensed guns.  They forcibly took my property showing duplicate papers.  

They bribed the police.  They have influence of the M.P.s.  They have even tried to give me poison to kill me. 

I was admitted in the hospital and was treated for one month. They have even tried to hit me on the head of which I am having the medical report.  If I complain to police they have threatened to kill me.  My place is already disturbed place where no one cares for law and order. That’s why I am seeking refuge for some time.”

46                  Further on, in answer to the question “Do you think the authorities of that country can and will protect you if you go back? If not why not?”, the applicant wrote:

“My cousins are of bad society and character.  They have cases running against them in the court.  The can do anything to get the property, they can get me killed by the hired criminals.” 

47                  Plainly the applicant was not, at that stage, alleging that the police had arrested, or beaten him.  Rather, he was complaining that he could not count upon them to protect him from his those who would seek to have him killed.

48                  Turning to the hearing before the RRT, although the word “police” is mentioned twice in the transcript, those references do not go beyond the claims made by the applicant in his initial application.  For example:

“MR VRACHNAS: So what problems did you have because you helped this person [Mr Solanki of the SWP] win a seat [Kanpur] in the federal parliament.

INTERPRETER: My family – most of them – I have brothers also in my family.  They are BJP party members and they are not happy that I was campaigning for Samajwadi party and they were saying that I should join BJP, not Samajwadi party, and they were keeping some sort of (indistinct) about me, that why I’m doing work for Samajwadi party.

…

He says they didn’t like it – the Samajwadi party candidate won an election in the area.  My brother – and BJP party workers, they said they should grab my property forcibly and BJP workers assured my brothers that nothing will happen to them from the police.  They will protect them during that act.  So that’s how it happened, they grabbed my property forcibly.”

49                  The word “police” is mentioned again as follows:

“MR VRACHNAS: Who wanted to kill you?

INTERPRETER: My cousin brothers.

MR VRACHNAS: So is it a group of people you think wants to kill you?

INTERPRETER: BJP Party workers and BJP and Bajrang Dal Party.  My brothers are also in that party and they are having protection from the police and the party also, so that’s why they wanted to kill me.”

50                  It is clear from the documents provided to the RRT, and from the transcript of the hearing before it, that the applicant’s contention that his claim that he had been “arrested and beaten by the Police” had been ignored cannot be sustained.  Put simply, he made no such claim. 

51                  It follows from what I have said that the applicant has advanced no arguable grounds of review.  That is reason enough to refuse the application to enlarge time. 

52                  It also follows that the application should be dismissed.  The applicant must pay the Minister’s costs.

Associate:

Dated:              20 November 2003